ab ovo

The ballot-mail application is withdrawn and refiled the same day

6 September 2026

The United States withdrew its application for a stay of the Postal Service ballot-mail order on 6 September 2026 and filed a new one the same day.12 The reason is that the order it attacked no longer exists: on 4 September the District of Massachusetts “formally issued a preliminary injunction that was substantively identical to its August 27 order, which it purported to dissolve.”1 Solicitor General D. John Sauer wrote to the Clerk that the 27 August order had been “[l]abeled as a 14-day temporary restraining order, but effectively functioning as a preliminary injunction,” that the United States appealed the new injunction “the same evening” and moved the First Circuit the next day to stay it pending appeal, and that it had filed a fresh application in the Supreme Court “in an abundance of caution.”1 The new application, No. 26A305, was docketed 6 September from First Circuit Nos. 26-2029 and 26-2031 (see Both ballot-mail injunctions are gone, and a restraining order has taken their place).23

  1. Justice Jackson recorded the substitution in a single order and reset the clock. She wrote that “[t]he Solicitor General has withdrawn the stay application filed on September 3, 2026 (26A297) and now seeks a stay of the preliminary injunction entered by the United States District Court for the District of Massachusetts on September 4, 2026,” and ordered “that any response to the new application (26A305) be filed by 4 p.m. (EDT) on September 9, 2026.”2 The response deadline on the withdrawn application had been 10 a.m. on 8 September.43

  2. Relabelling the order is what opened the route to the First Circuit. Section 1292(a)(1) gives the courts of appeals jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions,” and does not name temporary restraining orders; the district court’s conversion of one into the other on 4 September was followed by an appeal the same evening and a stay motion the next day.15 The Solicitor General’s objection to the 27 August order was that it was already functioning as the thing it was not called.1

  3. This is the third application in the same dispute in seven weeks, and the second to end without a ruling. The first, No. 26A124, was granted on 24 August; the second, No. 26A297, was docketed 3 September and withdrawn on 6 September without the Court acting on it; the third is pending.243

  4. Ballots have been in the mail throughout. North Carolina and Alabama began sending them on 4 September, the same day the district court entered the injunction now under challenge, and no stay has been entered on either the second application or the third.32

Footnotes

  1. Letter from Solicitor General D. John Sauer to Scott S. Harris, Clerk of the Supreme Court, United States Postal Service v. California, No. 26A297, 6 September 2026, six pages including the service list. Quoted for the description of the 27 August order as “[l]abeled as a 14-day temporary restraining order, but effectively functioning as a preliminary injunction”; for the 4 September preliminary injunction “that was substantively identical to its August 27 order, which it purported to dissolve”; for the appeal filed “the same evening” and the First Circuit stay motion filed “the next day”; for the new application filed “in an abundance of caution”; and for the withdrawal “[i]n light of those developments, and to simplify proceedings.” https://www.supremecourt.gov/DocketPDF/26/26A297/423227/20260906111028101_26A297_USPS_Letter.pdf ↩ ↩2 ↩3 ↩4 ↩5

  2. Supreme Court of the United States, docket for No. 26A305, United States Postal Service, et al., Applicants v. California, et al., docketed 6 September 2026; lower court United States Court of Appeals for the First Circuit, Nos. 26-2029 and 26-2031. Proceedings as of 8 September 2026: “Application (26A305) for a stay, submitted to Justice Jackson” (6 September), and the order of Justice Jackson quoted in the body, entered the same day. Counsel of record: Solicitor General D. John Sauer for the applicants; Ian Michael Fein, California Department of Justice, for the respondents. No order disposing of the application had been entered when this was checked. https://www.supremecourt.gov/docket/docketfiles/html/public/26a305.html ↩ ↩2 ↩3 ↩4 ↩5

  3. The Supreme Court stayed the California injunction on 24 August in No. 26A124; Judge Talwani lifted the League of Women Voters injunction shortly afterwards and entered a fourteen-day restraining order against parts of the Postal Service rule on 27 August; North Carolina and Alabama began mailing ballots on 4 September. See Both ballot-mail injunctions are gone, and a restraining order has taken their place and Supreme Court stays one of the injunctions blocking the mail-in ballot order. ↩ ↩2 ↩3 ↩4

  4. Supreme Court of the United States, docket for No. 26A297, United States Postal Service, et al., Applicants v. California, et al., docketed 3 September 2026 from First Circuit Nos. 26-1944, 26-1988 and 26-1989. The docket records the response requested by Justice Jackson “due by 10 a.m. (EDT), on September 8, 2026” (3 September), an opposition to the request for an administrative stay (3 September), a letter of respondent California (4 September), amicus briefs of the Society for the Rule of Law Institute (4 September) and Corey Biazzo (5 September), and then “Letter withdrawing the application filed” and “Application (26A297) withdrawn” (both 6 September). https://www.supremecourt.gov/docket/docketfiles/html/public/26a297.html ↩ ↩2

  5. 28 U.S.C. § 1292(a)(1), giving the courts of appeals jurisdiction over appeals from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions.” Temporary restraining orders are not named in the provision. https://www.govinfo.gov/content/pkg/USCODE-2023-title28/html/USCODE-2023-title28-partIV-chap83-sec1292.htm ↩

supreme-courtcourtselections